Articles Posted in Defenses

Because of the current politics surrounding sexual assaults in the military, some are wondering what they can do in advance to avoid a later false claim of sexual assault.  This has lead to a suggestion that the interactions should be video recorded, the idea being that the recording will later be evidence to defend against a false report.

Well, that doesn’t take care of the issue about the potential crime involved.  If the recording is done with knowledge and consent, that probably is defensible.  But what if it isn’t.  Many states now have statutes prohibiting unknowing or nonconsensual recordings.  As does the federal government in 18 U.S.C. 2251(a).  Now what.

See United States v. Palomino-Coronado, a decision of the Fourth.

The accused was convicted of taking pictures during sex.  He asked for the federal equivalent of a Griffiths motion, which was denied.  On appeal the court found the judge erred and the charge should have been dismissed.  The court found insufficient evidence of intent to engage in sex for the purpose of making pictures.  In other words, if he’d decided to take pictures of sex and then arranged the sex and recorded the sex—and there was evidence of that intent—then he could be found guilty.  But, as the recording was incidental and there was no evidence of intent there could be no conviction.  It’s not exactly a chicken-and-the-egg problem, but seems close.

Palomino-Coronado contends that the government failed to prove one of the elements of § 2251(a)—namely, that he acted for the purpose of producing a visual depiction.

§ 2251(a) contains a specific intent element: the government was required to prove that production of a visual depiction was a purpose of engaging in the sexually explicit conduct.  a defendant must engage in the sexual activity with the specific intent to produce a visual depiction; it is not sufficient simply to prove that the defendant purposefully took a picture.

Anyway.  If the accused is charged under UCMJ art. 134 for violating 18 U.S.C. 2251(a) or a similar statute, careful attention should be paid to Palimino-Coronado.  It is certainly not a slam-dunk, but there are arguments that can be made.

Some years ago I represented a Soldier accused of multiple assaults and rapes of his wife, and of his girlfriends.  The rapes allegedly included him choking the complaining witness during the rapes.

He told me – and later the members at his court-martial – that he and his wife consensually engaged in choking during sex as part of rough sex because she liked it.  At the time I was already aware of autoerotic behavior, so this didn’t seem too off-the-wall to me as a potential defense.  Almost all forensic pathology and death investigations texts have a section on the deadly act of autoeroticism.  So I researched “choking during sex” and came across quite a bit of research and current research about the “choking game,” and  “erotic asphyxiation.”  There is confusion over application ofthe term and the scope of the behavior.  There is even a website that describes why, in the writer’s view, women like to be choked during sex, and how to do it properly.  Like autoeroticism, the choking game can be deadly or cause serious harm.

Since that case I have had a number of cases where the complaining witness alleges she was choked while being raped, and I have investigated that as a possible defense.  I have several appeals now where this issue is clearly presented.  But in each of these appellate cases the defense counsel ignored or pooh-pooed the idea that the client was telling the truth about rough sex involving choking and so may have missed a potentially valid defense.

The Wikipedia entry on the choking game begins, “The choking game (also known as the fainting game and a wide variety of local slang names) refers to intentionally cutting off oxygen to the brain with the goal of inducing temporary syncope and euphoria.”  I cite Wikipedia because it is generally consistent with the research and anecdotal information I am aware of.  Wikipedia goes on to suggest the following.

Limited research has been conducted regarding motivations for practicing the fainting game, although thrill-seeking has been identified as a risk factor, as has the perception that it is a low-risk activity. Anecdotal reasons stated include:

Peer pressure, a challenge or dare, a rite of passage into a social group or amusement over erratic behavior.

Curiosity in experiencing an altered state of consciousness, the experience of a greyout, or an imagined approximation to a near-death experience.

A belief that it can induce a brief sense of euphoria (a rushing sensation or high).

The prospect of intoxication, albeit brief, at no financial cost.

Reasons for practice are distinct from erotic asphyxiation. Steve Field, chairman of the Royal College of General Practitioners in London, claims that the fainting game is pursued primarily by children and teens “to get a high without taking drugs.” Children “aren’t playing this game for sexual gratification.” It is frequently confused with erotic asphyxiation, which is oxygen deprivation for sexual arousal. Unlike erotic asphyxiation, practice of the fainting game appears to be uncommon in adulthood.

Here’s the Trial-Craft.  The prosecution identified an expert to come and testify about the physical effects of choking a person as a way to prove an aggravated assault as well as the rape.  But, that’s all they talked to the expert about during their interviews and preparation.  When I talked to the expert I talked about the choking issues and it turned out that based on his current practice and experience he was well aware of the choking game and it’s current “practice” especially by the young.  So when it came to trial I was able to make their expert my expert – to great effect.

The choking game defense in my case did result in acquittals on the rapes.

Reports regarding an Irish court-martial and litigation involving Lariam are most interesting.  Partly because of a case pending decision in the United States Court of Appeals for the Armed Forces.

The Irish Times reports that:

Taoiseach Enda Kenny has defended the Army’s continued use of the controversial anti-malaria drug Lariam, five years after the US military which pioneered the drug dropped it in the face of health concerns and legal actions from members of the military.

The court martial of a soldier accused of sexual assault this week heard evidence from Dr Ashley Croft, a British specialist in infectious diseases and public health, who said Lariam had been linked to neuropsychiatric disorders including, depression, suicidal tendencies and unusual behaviour, nightmares and psychosis, among other symptoms. . . . The Army private who had claimed he was suffering from the side-effects of Lariam was found guilty on Thursday and has yet to be sentenced.

I’m happy to say that when given Lariam for my Rule of Law teaching trip to Mali in 1996 (which included a visit to Timbuctoo), I suffered no ill effects, but then again, who knows.  :-)

So why the interest beyond any comparative law interest?  CAAF heard oral argument in United States v. MacDonald, No. 14-0001/AR, on Tuesday, May 13, 2014. Appellant was sentenced to life without the possibility of parole for, among other things, the premeditated murder of a fellow soldier by repeatedly stabbing him with a knife while he slept.  In a prior comment on CAAFLog a colleague characterized the case as CAAF to explore the bounds of possible drug induced psychosis.  At trial he claimed that the drug Chantix affected him at the time of the offense, partly evidenced by, “the FDA issued an “Alert” about Chantix addressing concern of an association between Chantix and serious neuropsychiatric symptoms including “changes in behavior, agitation, depressed mood, suicidal ideation, and attempted and completed suicide.”

A lieutenant colonel said because he suffers from kleptomania he should not be court-martialed for shoplifting last year at Fort Benning, Ga.

Lt. Col. Rodney Page, a 28-year Army veteran, admits to stealing $37 worth of challenge coins at the post exchange, but he blames the Army for mistakenly reducing medication he takes to curb his urge to steal.

“That impulse is so strong that it just overrides your common sense,” said Page, 58, recalling the theft. “I am ethical, even though I have this problem. I’ve never taken anything from anyone I know. You can leave money on the table; I’m never going to touch it.”

Army medical records supplied by Page’s attorney confirm that the incident led to the diagnosis that Page was a kleptomaniac.  Kleptomania is a rare and embarrassing impulse control disorder characterized by the theft of items regardless of value, with little or no premeditation. There is a sense of guilt or shame associated with the thefts.

Army Times reports.

I have posted before about honest people who shoplift and why they might do that.  I’m not sure the prior blog would explain this particular case, but here is a link back to it anyway — shoplifting.  For me this has come up recently with a couple of “inquiries.”  Here is an article about PTSD and shoplifting, Did Iraq veteran’s PTSD spark his shoplifting charge?  In the post I referenced a resource I have used in the past in shoplifting cases.

Will Cupchik, Why Honest People Shoplift or Commit Crimes of Theft (Revised), Tagami Comms., 2002.  Here is a link to The Cupchik Center for the Assessment and Treatment of Atypical Theft Offenders.
An American soldier accused of killing five fellow troops at a counseling center in Iraq had been unraveling for nearly two weeks but the U.S. military lacked clear procedures to monitor him or deal with the deadly shooting spree once it began to unfold, a military report found.

The shooting deaths drew attention to the issues of combat stress and morale as troops have to increasingly serve multiple combat tours because the nation’s volunteer army is stretched thin by two long-running wars.

Key lapses in assistance, care, and observation of troubled soldiers.

United States v. Brasington, ARMY 20060033 (A. Ct. Crim. App. 5 October 2009).

On 10 September 2008, our superior court granted appellant’s petition for grant of review on the following issue:


We have considered the original record and appellate filings, appellant’s affidavit, the trial defense counsel’s affidavit, and the briefs of appellate counsel. We hold that appellant has failed to demonstrate that his trial defense counsel’s performance was deficient. Accordingly, we affirm the findings and sentence.

This case is a reminder for not putting the cart before the horse:  it is not that the appellant lost at trial, but how and why he lost.  Here appellant did not lose because of his counsel but because of bad facts and competing expert opinions, as well as the law.

[Counsel] marshaled the facts at his disposal, presented them in a coherent fashion, exploited uncertainties in the law that lay at the heart of the legal issue in the case, and fully explained to appellant that, while legally and factually feasible, the defense was a “long shot.” See United States v. Ingham, 42 M.J. 218, 224 (C.A.A.F. 1995) (stating that when analyzing allegations of ineffective assistance of counsel, “[o]ur first point of inquiry is whether counsel had a reasonable trial strategy – one supported by the law and evidence.”)

How many times have we had to use those words, “yes that’s a defense, but it’s a long shot.”

Appellant turned down a negotiated PTA, plead not guilty, and presented his case to a Members panel.  His defense was lack of mental responsibility.  He had a really qualified expert who supported his theory [n.1] and an under-qualified 706 examiner who had hardly read much of the materials and evaluations.  Unlike the defense expert, the 706, as usual (and as testified to as common with R.C.M. 706 evaluations) did no independent testing, did not read the reports and data of the defense expert, and based the opinion on a two hour meeting with the appellant).  [n.2] And appellant was convicted.  His IAC claim boils down to his being given bad or wrong advice about his defense of lack of mental responsibility.  Essentially appellant claims his counsel assured him he would be acquitted which is why he rejected the PTA and plead not guilty (a pointed rejected by the defense counsel), and he further alleged that his counsel told him that his mental state would be inconsistent with a guilty plea and a guilty plea would not be accepted by the judge.

Therefore, considering the specific nature of the mental responsibility evidence in this case, MAJ M was not deficient in advising appellant he “would have trouble pleading guilty . . . if [he] wanted to [introduce] the mitigating evidence of [appellant’s] mental condition at the time . . .” More specifically, if appellant pled guilty, evidence that “Dr. Deporter had noted his schizotypal traits and impaired logic and reasoning at the time of the offenses . . . [and] that she expressed concerns about his ability to appreciate the wrongfulness of his actions . . . would undoubtedly call his providency to the plea into question.”

Here this case presents a not uncommon problem for trial defense counsel.  You have evidence that could, if believed, raise a defense.  However, counsel determines that the defense is unlikely to succeed.  But at the same time, counsel is aware that that same evidence will likely cause a military judge to reject a guilty plea if presented in sentencing.

The case is a decent primer on representing and defending mental responsibility issue loaded cases.  And another confirmation for what defense counsel already know, that R.C.M. 706 “evaluations” are often perfunctory and fail to adequately inquire.


n.1.  Dr. D’s opinion, it was the first time in her thirty years of practice that she had concluded that a subject was not mentally responsible.

n.2.  Doctor Barry described that [during only his third 706 and first time testifying], in conjunction with his evaluation of appellant in September 2005, he reviewed “a packet of information from the attorneys,” and interviewed appellant for two hours. Doctor Barry did not perform any psychological or psychiatric tests on appellant, and he explained that such testing is not routinely conducted for sanity boards. He did not examine Dr. Deporter’s case file on appellant, to include her observations of him near the time of the offenses and the results of the psychological testing she conducted a short time later in the summer of 2004. He was unaware of appellant’s combat experiences [and the very extensive PTSD related evidence].  Slip op. at 7 (emphasis added).

September 29, 2009, in Suits & Sentences.

Troops lose challenge to anthrax vaccination

Eight members of the U.S. military who challenged a mandatory anthrax vaccination have lost, again.

Like the phoenix this is an old story that is likely to rise again in light of the proposed DoD flu shot program.  Don’t know about others, but I’ve already been contacted by several pregnant or nursing military personnel who want to refuse the flu vaccine because of concerns about their baby.

Did Iraq veteran’s PTSD spark his shoplifitng charge?  By Julia O’Malley | Anchorage Daily News.

Do you have client accused of shoplifting, a senior officer or senior enlisted perhaps, a really good person who no-one would have imagined as stealing from the Exchange?  Can you explain that?

For some years I have successfully argued from this book (e.g. in a Gen. Off. Art.15, or with the AFBCMR).

Will Cupchik, Why Honest People Shoplift or Commit Crimes of Theft (Revised), Tagami Comms., 2002

Here is a link to The Cupchik Center for the Assessment and Treatment of Atypical Theft Offenders.


Here is a link to a comment about “Criminal Responsibility of War Veterans with PTSD.”

Here’s a useful and timely article.
Hafemeister & Stockey on Criminal Responsibility of War Veterans with PTSD

Hafemeister_07Thomas L. Hafemeister (University of Virginia School of Law) and Nicole A. Stockey have posted Last Stand? The Criminal Responsibility of War Veterans Returning from Iraq and Afghanistan W ith Post-Traumatic Stress Disorder (Indiana Law Journal, Forthcoming) on SSRN.  Here is the abstract:

As more psychologically-scarred troops return from combat in Iraq and Afghanistan, society’s focus on and concern for these troops and their psychological disorders has increased. With this increase and with associated studies confirming the validity of the Post-Traumatic Stress Disorder (PTSD) diagnosis and the genuine impact of PTSD on the behavior of war veterans, greater weight may be given to the premise that PTSD is a mental disorder that provides grounds for a “mental status defense,” such as insanity, a lack of mens rea, or self-defense. Although considerable impediments remain, given the current political climate, Iraq and Afghanistan War veterans are in a better position to succeed in these defenses than Vietnam War veterans were a generation ago. This Article explores the prevalence and impact of PTSD, particularly in war veterans, the relevance of this disorder to the criminal justice system, and the likely evolution of related mental status defenses as Iraq and Afghanistan War veterans return from combat.

/tip CrimProfBlog

I have previously commented about evidence of the victim’s character for violence and specific incidents.  To refresh – there are several ways the assault victim’s character for violent behavior can become relevant and admissible in an assault case.

a.  The defense puts on opinion testimony about the victim’s violent, threatening, or assaultive non-peaceful character, as part of a self-defense case.

b.  The prosecution puts on opinion testimony of the victim’s character for peacefulness.

c.  The defense cross-examines a prosecution witness to peacefulness with specific instances of violent behavior to test the witness’s opinion.

d.  And as the case below points out, the accused can testify about specific incidents if known to him, and if reasonably close in time or over a lengthy period of time.

Eighth Circuit Considers Admissibility Of Victim’s Prior Threats, Character And Reputation Evidence

In assault with a dangerous weapon prosecution, trial court correctly excluded defendant’s evidence of prior threats made by his victims against others, despite defendant’s self-defense claim, because the defendant failed to show he had personal knowledge of the remote, prior threat, so that it might show the defendant’s state of mind in shooting at victim under FRE 405(b), in United States v. Bordeaux, __ F.3d __ (8th Cir. July 7, 2009) (No. 08-2280).

/tip FederalEvidenceBlog.